Membership Doesn’t Have Its Privileges: Liberty on Trial in the Martinez Case

Groucho Marx famously quipped to the Friar’s Club of Hollywood that he didn’t “want to belong to any club that will accept people like me as a member.” On Monday the Supreme Court heard oral arguments in a case where Groucho-like humility is nowhere in evidence.

In CLS v. Martinez, what is at issue is the right of the Christian Legal Society (CLS) to establish and receive routine school recognition for a chapter that retains and applies a statement of faith to its officers and voting members. On the other side of the courtroom aisle is the University of California Hastings College of the Law, which insists that its “nondiscrimination” policies with respect to religion and sexual orientation force CLS to grant voting-member status to any law student, regardless of whether that student holds Christian views or beliefs or engages in conduct that violates core Christian tenets.

The case is a powerful illustration of the way overzealous government can use what it regards as individual rights to trump and even destroy associational freedoms that characterize and bolster civil society.

The case also contains more than a whiff of religious prejudice. Hastings College of the Law recognizes other groups that impose membership requirements, including one that requires its full members to be of a particular racial or ethnic descent. As the case developed and CLS pointed out that the law school permitted nonreligious groups like the Federalist Society and Hastings Democrats to organize around nonreligious ideas, the college asserted that its true policy was that no student group could exclude any member or officer for any reason.

Imagine the Hastings Democrats replete with Republicans. The American Constitution Society dominated by monarchists. The Clara Foltz feminists run by misogynist males.

The conflict also offers lessons about the implementation of some sexual orientation nondiscrimination policies. The Hastings College of the Law has such a policy and the school objects to CLS because its membership requirements allegedly violate this policy as well. But CLS has made clear (PDF) that its orthodox interpretation of Christian teaching applies not to sexual orientation but to conduct, and not even to conduct but to conduct about which the individual is “unrepentant.” In other words, CLS admits voting members who may identify themselves as having a gay or lesbian sexual orientation and only excludes those who unrepentantly engage in homosexual sex and those who advocate for what the Christian tradition regards as sin.

An amicus brief filed in the case by professional gay-rights groups Lambda Legal and Gay and Lesbian Advocates and Defenders insists not just that this distinction must not be respected but that it cannot even be drawn. “By excluding those who engage in same-sex sexual conduct unrepentantly, it rejects gay people based on their sexual orientation,” the brief argues. But this argument simply does not withstand scrutiny. Consistent with its statement of faith, CLS will admit or deny people with a homosexual orientation on the same basis as it admits or denies people with a heterosexual orientation – on the basis of whether or not that person conforms his or her beliefs and personal conduct to the Biblical teachings expressed in CLS’s statement of faith.

A brief filed by the Boy Scouts of America (PDF), who prevailed in the Boy Scouts of America v. Dale (2000) case involving “expressive association,” makes the point succinctly: “The whole purpose of an expressive association is to associate with like-minded individuals.” Former Supreme Court Justice Sandra Day O’Connor recognized a similar constitutional principle when she wrote in Roberts v. U.S. Jaycees (1984) that “the association’s right to define its membership derives from the recognition that the formation of an expressive association is the creation of a voice, and the selection of members is the definition of that voice.”

The right of individuals, no matter what their viewpoint, to associate with like-minded individuals is something people on all sides of the issues – and desiring the freedom to form and join organizations that carry those ideas forward – should prize at the highest level. Especially at a public law school dedicated to the processes of debate and argument that nourish the pursuit of truth.

Charles A. "Chuck" Donovan is the president of the Charlotte Lozier Institute. He served as legislative director of the National Right to Life Committee more than three decades ago, worked as a writer for President Reagan, helped to lead the Family Research Council for nearly two decades and most recently has been senior research fellow in Religion and Civil Society at The Heritage Foundation.

Join The Discussion

Interesting, it seems, that LAMBDA is exists as an exclusive organization that conducts itsown business in secret as much as possible. I saw an expose showing an undercover journalist infiltrating LAMBDA . It took 2 years of gaining their trust before he was allowed into the “inner sanctum” where he could learn what they were really about.

Yet these same groups demand inclusion so they can disrupt and dismantle organizations who do not agree with them.

As a gay male, I do not have a problem with CLS being an inclusive group built around their strict religious beliefs. I think the inherent problem lies in the fact that they want to discriminate against a specific group and receive public funding at the same time. To this point you argue that their policy is applied fairly across the board. However, I highly doubt the CLS is monitoring their heterosexual members' adherence to their strict code of moral conduct. And quite frankly, how does one go about doing this?

Disillusioned in Oregon, should more aptly be referred to as misinformed. The big difference between Lambda Legal and CLS is that Lambda Legal relies on private funding and is not seeking recognition, by way of endorsement or funding from a public entity. It can be similarly compared to the Boy Scouts of America. As a private entity, they are entitled to limit their membership on a specific set of criteria. If they wish to use a discriminatory set of criteria, then they should not expect public endorsement or funding.

When engaging in this debate, let's make sure we get our facts straight. Public recognition and funding come with a different set of criteria than that of a private entity. This is why organizations like the Family Research Council, the Human Rights Campaign, the National Organization for Marriage, etc. are able to flourish. Simply put they have a right to as they are privately funded entities. Please do not try to link these two arguments together as they are completely separate..

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